EXHIBIT 4.7
PATHNET TELECOMMUNICATIONS, INC.
GUARANTEE
1. GUARANTEE OF PAYMENT AND PERFORMANCE OF OBLIGATIONS.
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(a) For value received, Pathnet Telecommunications, Inc. (the "Parent")
unconditionally guarantees to the holder of any
Outstanding Note or Notes (a "Holder") the full and
punctual payment and performance of the Obligations
(as defined in subsection (b) below). This Guarantee
is an absolute, unconditional and continuing
guarantee of the full and punctual payment and
performance by the Company of each of the
Obligations, and not of collectability only, and is
no way conditioned upon any requirement that any
Holder first attempt to seek payment or performance
from the Company or any other guarantor or surety or
resort to any security or other means of obtaining
payment of all or any of the Obligations or upon any
other contingency. Upon any default by the Company in
the full and punctual payment or performance of any
of the Obligations, if such default remains uncured
after the giving of any required notice and after any
applicable period of cure, the liabilities and
obligations of the Parent hereunder shall at the
option of any Holder become forthwith effective,
matured, due and payable without further demand or
notice of any nature, all such demands and notices
being expressly waived by the Parent.
(b) As used herein, the term "Obligations" means all obligations,covenants,
liabilities, undertakings and agreements of any kind
of the Company to all or any of the Holders contained
in the Indenture, to be performed after the date
hereof, howsoever, incurred, arising or evidenced,
whether now or hereafter existing, due or to become
due or of payment or performance and including,
without limitation: (i) the prompt payment in full,
in United States currency, when due (whether at
stated maturity, by acceleration, by mandatory or
optional prepayment or otherwise) of the principal of
and interest on the Notes (including interest on any
overdue principal, and, to the extent permitted by
applicable law, on any overdue interest) and all
other amounts from time to time owing by the Company
under the Indenture and under the Notes (including
costs, expenses and taxes); and (ii) the prompt
performance and observance by the Company of all
covenants, agreements and conditions on its part to
be performed and observed under the Indenture, in
each case strictly in accordance with the terms
thereof (such payments and other obligations being
herein collectively referred to as the
"Obligations").
2. GUARANTEE CONTINUING AND LIABILITY UNAFFECTED.
(a) Subject to Section 2 (c), this is a continuing guarantee and shall
be binding upon the Parent regardless of how long
before or after the date hereof any part of the
Obligations was or is incurred by the Company.
Subject to Section 2 (c), this Guarantee may be
enforced by any or all of the Holders from time to
time and as often as occasion for such enforcement
may arise.
(b) If after receipt of any payment from the Parent made hereunder the
Holders, or any of them, are compelled to surrender
or voluntarily surrender such payment or proceeds to
any person because such payment or application of
proceeds is or may be avoided, invalidated,
recaptured, or set aside as a preference, fraudulent
conveyance, impermissible setoff or for any other
reason, whether or not such surrender is the result
of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over the
Holders, or (ii) any settlement or compromise by the
Holders of any claim as to any of the foregoing with
any person (including the Company), then the
Obligations or part thereof affected shall be
reinstated and continue and this Guarantee shall be
reinstated and continue in full force as to such
Obligations or part thereof as if such payment or
proceeds had not been received. The provisions of
this Section 2(b) shall survive the termination of
this Guarantee and any satisfaction and discharge of
the Company by virtue of any payment, court order or
any federal or state law.
(c) The Parent shall be subrogated to all rights of the Holders in respect
of any amounts paid by the Parent pursuant to the
provisions of this Guarantee; provided, however, that
Parent shall be entitled to enforce, or to receive
any payments arising out of or based upon, such right
of subrogation with respect to any Obligation only
after the payment of all amounts owed by the Company
to the Holders with respect to all of the Obligations
have been paid in full.
(d) This Guarantee shall terminate and be of no further force and effect
as to any Note upon full payment of the Redemption
Price with respect to such Note, PROVIDED, however,
that this Guarantee shall continue to be effective or
shall be reinstated, as the case may be, if at any
time the Company must restore payment of any sums
paid under such Note or under this Guarantee for any
reason whatsoever.
3. UNCONDITIONAL NATURE OF PARENT'S OBLIGATIONS AND LIABILITIES.
The obligations and liabilities of the Parent hereunder shall be
absolute and unconditional, and shall not be subject to any
counterclaim, set-off, deduction or defense based upon any claim the
Parent may have against the Company or any other person or entity. Such
obligations and liabilities shall remain in full force and effect for
the period set forth in Section 2 above without regard to any event,
circumstance or condition (whether or not the Parent shall have
knowledge or notice thereof) which but for the provisions of this
Section might constitute a legal or equitable defense or discharge of a
guarantor or surety or which might in any way limit recourse against
the Parent, including:
(a) any amendment or modification or supplement to the
terms of the Indenture, this Guarantee or any of the
Notes, including the renewal or extension of the time
for payment of the Notes or the granting of time in
respect of the payment thereof;
(b) any waiver, consent, extension, granting of time,
forbearance, indulgence or other action or inaction
under or in respect of the Indenture or the Notes, or
any exercise or non-exercise of any right, remedy or
power in respect thereof;
(c) the invalidity or unenforceability, in whole or in
part of the Indenture or this Guarantee resulting
from the Company's or the Parent's lack of authority
to enter into the Indenture and/or to incur any or
all of the Obligations, by any person acting for the
Company or the Parent without or in excess of
authority;
(d) any actual, purported or attempted sale, assignment
or other transfer by any or all of the Holders or by
the Company or the Parent of the Indenture or the
Notes or of any of their rights, interests or
obligations thereunder;
(e) the addition of any party as a guarantor or surety of
all or any part of the Obligations or any limitation
of the liability of any additional guarantor or
surety of all or any part of the Obligations under
any other agreement;
(f) any merger or consolidation of the Company or of the
Parent into or with any other entity, or any sale,
lease, transfer or other disposition of any or all of
any Company's or the Parent's assets or any sale,
transfer or other disposition of any or all of the
economic interests in the Company or the Parent to
any other person or entity;
(g) the recovery of any judgment against the Company or
any action to enforce the same; or
(h) any change in the financial condition of the Company
or the Company's entry into an assignment for the
benefit of creditors, an arrangement or any other
agreement or procedure for the restructuring of its
liabilities, or the Company's insolvency, bankruptcy,
reorganization, dissolution, liquidation or any
similar action by or occurrence with respect to the
Company.
4. PARENT'S WAIVER. The Parent unconditionally waives, to the
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fullest extent permitted by law:
(a) fullest extent permitted by law: notice of any of the matters referred
to in Section 3 hereof;
(b) diligence, presentment, demand of payment and filing of claims with a
court in the event of bankruptcy or insolvency of the Company;
(c) any right to the enforcement, assertion or exercise by any or all of
the Holders of any of their rights, powers or remedies under, against
or with respect to the Company (i) any other guarantor or surety, or
(ii) any security for all or any part of the Obligations;
(d) any requirement that the Parent be joined as a party in any action or
proceeding against the Company to enforce any of the provisions of the
Indenture;
(e) acceptance of this Guarantee by any Holder;
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in this Guarantee.
5. REPRESENTATIONS AND WARRANTIES. The Parent represents and
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warrants that:
(a) the Parent is a corporation duly organized and
validly existing in good standing under the laws of
the State of Delaware and has the full power,
authority and legal right to enter into and perform
its obligations under this Guarantee;
(b) this Guarantee has been duly authorized, executed and
delivered by the Parent and constitutes the legal,
valid and binding obligation of the Parent,
enforceable against the Parent in accordance with its
terms, except for the effect of bankruptcy,
insolvency, reorganization, moratorium, receivership
or similar laws affecting the enforcement of
creditors' rights generally;
(c) the execution, delivery and performance by the Parent
of this Guarantee do not and will not contravene any
applicable law, rule, regulation, judgment or order
and do not and will not contravene the provisions of,
constitute a breach of or default under, or result in
the creation of any security interest, lien or
encumbrance on any of the property of the Parent
pursuant to, the Parent's articles of incorporation
or by-laws or any indenture, mortgage, license or
other contract, agreement or instrument to which the
Parent is a party or by which it is bound.
6. ATTORNEY'S COSTS. The Parent agrees to pay all reasonable
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attorney's fees and disbursements and all other reasonable and actual costs and
expenses which may be incurred by the Holders in the enforcement of this
Guarantee.
7. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding
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upon the Parent and its respective successors and assigns, and shall inure to
the benefit of and be enforceable by the Holders and their respective successors
and assigns.
8. GOVERNING LAW. This Guarantee shall be governed by and
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construed in accordance with the laws of the State of New York.
9. SEVERABILITY. Wherever possible, each provision of this
Guarantee shall be construed in such manner as to be valid and enforceable
against the Parent under applicable law, but if any provision hereof shall be
deemed invalid or unenforceable to any extent against the Parent in any
jurisdiction, such provision shall be ineffective only to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remainder of such provision or any of the other provisions hereof, and any
such invalidity or unenforceability against the Parent in one jurisdiction shall
not render such provision ineffective in any other jurisdiction.
10. NOTICES.
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Any notice, request or other communication required or
permitted to be given hereunder to the Holders shall be given by the Parent in
the same manner as set forth in Section 106 of the Indenture.
11. TRANSFERABILITY. This Guarantee is solely for the benefit of
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the Holders and is not separately transferable from the Notes.
12. HEADINGS. Section headings appearing in this Guarantee are
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for convenience of reference only and shall not define, limit, amplify or
otherwise modify any provision hereof. Capitalized terms used herein have the
meanings given to them in the Indenture.
This Guarantee shall not be valid or obligatory to any purpose until
the certificate of authentication on the Note on which this Guarantee has been
endorsed shall have been executed by the Trustee under the Indenture by the
signature of one of its authorized officers.
IN WITNESS WHEREOF, the Parent has caused this Guarantee to be executed
on its behalf by an officer or other person thereunto duly authorized as of
March 30, 2000.
PATHNET TELECOMMUNICATIONS, INC.
By: /s/ W.R. Smedberg V
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William R. Smedberg, V
Executive Vice President, Corporate Development